Indigenous World 2020: Nepal

Written on 11 May 2020. Posted in Nepal

According to the 2011 Census, the Indigenous nationalities (Adivasi Janajati) of Nepal make up 36% of the total population of 29.8 million,¹ although Indigenous Peoples’ organisations claim a larger figure of more than 50%. The 2011 Census listed the population as belonging to 125 caste and ethnic groups, including 63 Indigenous Peoples; 59 castes, including 15 Dalit castes;² and three religious groups, including Muslim groups.

Although Indigenous  Peoples  constitute a significant proportion of the population, throughout Nepal’s history, they have been discriminated, marginalised, excluded, subjugated, dominated, exploited and internally colonised by the dominant caste groups in terms of land, territories, resources, language, culture, customary laws, political and economic opportunities, and their collective way of life.

The new Constitution of Nepal, promulgated in 2015, denies Indigenous Peoples their collective rights and aspirations for identity-based federalism,³ despite the fact that Nepal has ratified ILO Convention 169 on Indigenous and Tribal Peoples and passed both the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the World Council of Indigenous Peoples’ (WCIP) Outcome Document. Their implementation is still lacking however. Recent amendments to laws and draft bills are not in line with the UNDRIP or ILO C169. The Nepalese government has shown no sign of implementing the recommendations, including that of amending the constitution to explicitly recognise the right to self-determination and all Indigenous women’s rights in line with the UNDRIP, as outlined by the UN Committee on the Elimination of Discrimination against Women (CEDAW).

Largest historic protest since the 2006 people’s movement

The Nepalese government introduced a bill in the federal Parliament [upper house] on 29 April 2019 scrapping Guthi, the customary self-government system of the Newa,⁴ supposedly to regulate endowments in religious institutions, especially Hindu temples, which are also known as Guthi. 2019 will be remembered as a year when thousands of Indigenous people, especially the Newa, came out on the streets of Nepal Mandala, their ancestral lands, to collectively protest at the attempted annihilation of their customary self-government systems by the dominant “Khas Arya” (Brahmanist) rulers of Nepal.

The Kathmandu Post reported: “Despite the government’s withdrawal of the bill from the National Assembly on Tuesday, residents of the Kathmandu Valley—mostly Newars [Newa]—took to the streets in large numbers, protesting what they called a state-led attempt to wipe out centuries-old customs and traditions.”⁵ The Newa Indigenous Peoples had demanded the bill be repealed for good and that no attempt should be made to bring it back in any way in the future. The Kathmandu Post quoted Ganapati Lal Shrestha, coordinator of the Rastriya Pahichan Samukta Sangharsha Samiti (Joint Struggle Committee for the Preservation of National Identity), who said: “Eleven days ago, when we protested, the government thrashed us with batons and used water cannon to disperse us. Many of us were injured. Now, the whole city has woken up to fight to preserve our culture and protest the government’s autocracy”.⁶ The Kathmandu Post reported on June 10 that: “At least six people were injured on Sunday when police used force to disperse heritage conservationists, locals and stakeholders who were protesting the proposed Guthi Bill that the government has quietly moved to Parliament without holding proper consultation.”⁷

This extraordinary historic event sent a clear message to political leaders that Indigenous Peoples would go beyond their party lines to defend their customary self-government systems. If the Newa, one of the 59 formally recognised Indigenous Peoples, could stage a protest equivalent to the people’s movement of 2006, what might happen if all 59 Indigenous Peoples, and other yet to be formally recognised Indigenous Peoples, took to the streets demanding changes in the constitution in line with UNDRIP that would guarantee collective rights, including the rights to self-determination, autonomy, self-rule and customary laws?

The ancestral lands, territories and resources of the Newa people lie in the Kathmandu Valley, and they have more than 1,000 Guthi rules within their customary self-government system that maintain their everyday collective life, including clan-related, life cycle rituals, social, cultural, religious, spiritual, judicial and economic activities that bind all the clan’s families together by involving them in both mandatory and voluntary activities. It is true that there is no Newa if there is no Guthi.

Protest against scrapping of reservation by the Public Service Commission

In alliance with the Dalit and Madhesi movement, the Nepal Federation of Indigenous Nationalities (NEFIN) jointly organised several street protests in 2019 claiming that the federal Public Service Commission’s advertising of 9,161 vacant posts at the local level as a reserved quota of 45% of the total positions vacant to marginalised groups (Indigenous Peoples, Dalit, Madhesi, Muslims, persons living with disabilities and people living in remote areas) was not in line with the Civil Service Act. The Public Service Commission (PSC) was reported as saying that “it could not ensure inclusion because there were not enough seats in all local levels”. Those who were for the quota argued that the total vacant posts needed to be distributed to each cluster by putting all vacant positions in one basket.⁸ The government, however, responded to the protests with excessive use of the security forces. The chair of NEFIN and eight other protestors were injured.⁹ The positive side of this movement is that all groups facing social exclusion have now joined forces to reclaim their lost quota.

Land, territories and resources

2019 has been an eventful year in the Indigenous Peoples’ continuing struggle to reclaim ownership and control over lands, territories and resources. For example, the Supreme Court of Nepal issued a Directive Order on 31 December 2018 that laws should be passed to establish the Baram Special, Protected or Autonomous region as stated in the constitution (Bhuwan Baram & Tek Bahadur Baram vs Prime Minister of Nepal WN 074-WO-0239). Baram are one of the 59 Indigenous Peoples formally recognised by the government and they are a highly marginalised group. The Supreme Court has clearly stated that the culture and social structure of the Baram cannot be protected without establishing the Baram Special or Protected area. Inspired by this directive order, the Majhis, Baram, Newa, Magar, Kiratis and Santhals are all raising the issue of Protected, Special and Autonomous Areas with the support of the Lawyers’ Association for Human Rights of Nepal’s Indigenous Peoples (LAHURNIP). A Writ Petition was filed (076-WO-0259) in this regard by Sadaar Sing Limbu et al against the Prime Minister of Nepal. The Supreme Court issued Show Cause Order and the case is ongoing. Article 56 (5) has a provision that “any Special, Protected or Autonomous Region can be established under the Federal law for social, cultural protection or economic development”¹⁰ but this has never been implemented by the government.

Another example is a Writ Petition (Amitra Shakya et al vs. Government of Nepal) filed at the Supreme Court of Nepal against forced eviction, for the protection of cultural rights and against development aggression in the ancestral lands of the Newa Indigenous Peoples. A third example relates to a letter sent by the Director-General of the International Labour Organisation (ILO). The letter was the result of a decision of the ILO’s Governing Body taken at its 333rd session (June 2018).¹¹ According to this decision, the ILO would set up a tripartite committee to examine the matter of a complaint lodged by the Nepal Telecom Employees Union (NTEU) on behalf of Indigenous Newa¹² on 6 November 2019. The ILO asked the NTEU if they wanted them to mediate (if both parties agreed to it) or otherwise conduct an investigation into the complaint and take the necessary action. The government did not accept the option of reconciliation and so the ILO will have to conduct an investigation. Leaders of the movement against illegal road expansion do not believe the government will settle this case of violation in line with ILO Convention No. 169.

“WWF continues to ignore violations of human rights”

The rangers of the Chiwtan National Park put Shikharam Tharu, an Indigenous Tharu, in jail in 2006 on charges of helping his son bury a rhinoceros horn in his backyard. The horn was never uncovered but the man was found dead nine days following his arrest due to torture by the rangers. This news was further exposed in an investigative news story by The Kathmandu Post, in partnership with BuzzFeed News, published on 3 March 2019, which went on to claim that the World Wide Fund for Nature (WWF) “continues to ignore violations of human rights inside Nepal’s conservations areas”.¹³ On 4 March 2019, BuzzFeed published  a further report that claimed the WWF “funds vicious paramilitary forces to fight poaching”.¹⁴ “What’s worrisome is the complicity displayed by the leading conservation organisation, the World Wide Fund for Nature—formerly the World Wildlife Fund and known globally by its abbreviation—which continues to support and work with officials accused of torture, all while concealing evidence of human rights violations against some of the most vulnerable communities of people,” reported The Kathmandu Post.¹⁵

European Investment Bank Complaint Mechanism and FPIC

The European Investment Bank (EIB) Complaint Mechanism (CM) visited Nepal from 14 to 20 March 2019 and met with the communities affected by 220 kV Marsyangdi Corridor transmission line project funded by the EIB and national authorities to conduct a review into a complaint lodged on 19 October 2018 by the FPIC & Rights Forum, Lamjung. The EIB-CM met with five villages in Lamjung district and visited several sites proposed for the 220 KV electricity transmission towers. They met with representatives of the complainants’ advisors, Accountability Counsel,¹⁶ and the Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP).¹⁷ EIB asked LAHURNIP to develop an FPIC protocol in anticipation that the Nepal Electricity Authority (NEA) would agree to mediation with the community and FPIC could be obtained from the affected Indigenous Peoples. As the NEA refused mediation, the EIB will carry out a compliance review in the future.

Participation

The Supreme Court of Nepal issued a Show Cause Order on 11 August 2019 to a Writ Petition filed by LAHUNRIP on the issue of Indigenous Peoples’ meaningful participation in decision-making, including law making processes (076-WO-0104). This case is ongoing and at the point of a final hearing.

Indigenous Peoples in the periodic plan

The government approved the Concept Paper for the 15th periodic plan (2019/20-2023/24) on 29 April.¹⁸ Nepal’s National Planning Commission (NPC) included a number of plans and programmes for Indigenous Peoples following an intervention by the Lawyer’s Association for Human Rights of Nepal’s Indigenous Peoples (LAHURNIP) during the drafting of the Concept Paper. According to the Concept Paper, the Special, Protected and Autonomous areas will be organised and operationalised according to the constitution and the local-level operation act. It mentions conducting surveys of the rest of the non-surveyed/non-mapped lands, bringing them under land administration systems and protecting them by preparing detailed documents of governmental, public community and Guthi (Trust) lands. Further, the survey will state all the local-level biodiversity and associated/related knowledge, skills, practices, socio-cultural systems, arts and intellectual property of Indigenous and tribal peoples (Adivasi Janajati), and local communities will be documented and duly registered. It also commits to implementing and institutionalising a special programme for the protection of marginalised and endangered disappearing peoples (such as the Raute, Kusunda, Chepang, Rajbansi, Chamar, Musahar, Vadi, Raji, etc.). This may be positive but only if the government carries it out in line with the UNDRIP and ILO C169, obtaining FPIC and with the meaningful participation and representation of Indigenous Peoples. Otherwise, it could potentially be a threat to Indigenous Peoples as they may not agree to the categories classifying their land.

Raute in a “human zoo”

Guranse rural municipality in Dailkeh district decided to confine 42 families (149 individuals) of the nomadic Raute people in their village on the banks of Garche River by erecting fences around them so that visitors could pay an entrance fee to see or meet them, effectively putting the Raute in a human zoo. LAHURNIP issued a press statement on 5 July 2019 condemning this violation of the Raute’s human right to move freely in their ancestral forests.¹⁹ After three months of this confinement against their will, the Raute moved to Surkhet, first to Satakhani in Lekbesi municipality, then to Sattachaur in Guranse rural municipality. One group has now camped on the banks of Bagrne River in Surkhet municipality, and another on the banks of Sot River in Barhatal rural municipality in Surkhet. The Raute chief said that they cannot give up their customary practice of nomadic life and they enjoy living in the forest because it is their home.²⁰

Indigenous women

Indigenous women’s organisations, especially the Nepal Indigenous Women’s Forum (NIWF -Nepal), Nepal Indigenous Women’s Federation (NIWF), Indigenous Women’s Legal Awareness Group (INWOLAG) and National Indigenous Disabled Women’s Association Nepal (NIDWAN) met the minister and secretary of the Ministry of Women, Children and Senior Citizens (MWCSC) and secretary of the National Women’s Commission (NWC) in 2019 to be updated on the level of compliance with the Committee on the Elimination of Discrimination against Women’s recommendations issued to Nepal on 14 November 2018. One year has now elapsed but the Nepalese government has done nothing in this regard and remains non-compliant. Although the minister gave insufficient time for discussion, they said they would look into this matter. The NWC officials have given assurances that they will draw the government’s attention to the issue.

Climate change

Nepal released a new Climate Change Policy in 2019, repealing the 2011 version. The 2019 policy has the objectives of:

advancing the capacity on Climate Change Adaptation (CCA), developing ecosystem resilience, promoting green economy by adopting low carbon economic development concept, mobilising national and international financial resources, making effective the information service, mainstreaming climate change into relevant policy, strategy, plan and programmes, and also mainstreaming gender and social inclusion, including in climate change mitigation and adaptation programmes.

The policy undertakes “to formulate and implement laws, strategies, working policies, guidelines, procedures, manuals and plan at Federal, Provincial and Local levels to implement this Policy” and “to revise or formulate and implement National Framework on Local Adaptation Plan for Action (LAPA), National Adaptation Plan (NAP), REDD Strategy, Climate Finance Framework and Budget Code, Green Growth Strategy, Gender Mainstreaming in Climate Change Action Plan, and other climate change documents”.

The policy renews its commitment “to formulate national strategy on low carbon economic development, and carbon trade (as reflected in the 2011 policy) and prepare a roadmap to the Paris Agreement, Nationally Determined Contributions (NDC), National Adaptation Plan of Action and Transparency Framework” adding that “associations are required to take prior approval of the Ministry of Forests and Environment before implementation of climate change-related projects with donor’s support”.²¹ NEFIN’s Climate Change Programme has contributed to ensuring the rights of Indigenous Peoples are included in these government initiatives. Consistent advocacy will, however, be needed to get Indigenous Peoples’ rights fully respected in climate actions.

Indigenous LGBTI

In November 2019, the Blue Diamond Society (BDS) and the National Indigenous Women’s Forum (NIWF-Nepal) jointly organised a first-ever conference and training session on the Universal Periodic Review and other international laws and advocacy on the rights of Indigenous women and LGBTI in Kathmandu. This was an historic conference in Nepal where issues of Nepal’s Indigenous LGBTI community were discussed and an advocacy strategy was formulated. The participants highlighted the need to make the Yogyakarta Principles+1022 compatible with the UNDRIP and to specify Indigenous LGBTI in UNDRIP.

Krishna B. Bhattachan belongs to the Thakali Indigenous people. He is one of the founding faculty members and former head of, and recently retired from, the Department of Sociology and Anthropology at Tribhuvan University in Nepal. He is associated with the Lawyer’s Association for Human Rights of Nepal’s Indigenous Peoples (LAHURNIP) as an Indigenous expert. He has published several books and articles on Indigenous issues.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

1. Nepal’s central Bureau of Statistics (CBS) makes population projections every day https://cbs.gov.np/
2. Hindu cosmology divides the population into hereditary caste groups ranked according to ritual purity and The Dalit castes form the lowest tier of the caste system and are highly marginalised to this day (Ed. note)
3. 61 Indigenous Peoples were initially officially recognised in Nepal through the ordinance, Rastriya Janajati Bikas Samiti (Gathan Adesh) 2054. Indigenous Peoples have been officially and legally recognised by the government since 2002 (2059 B.S.) through the National Foundation for the Development of Indigenous Nationalities Act (known as the NFDIN Act), which lists 59 distinct indigenous communities in the country.
4. The Newar in Khas Nepali language. The Newar call themselves the Newa in their Nepa Bhasa mother tongue.
5. Ojha, Anup “In biggest protest since the 2006 People’s Movement, thousands of protesters gather to oppose the Guthi Bill”. The Kathmandu Post, 19 June 2019: https://kathmandupost.com/valley/2019/06/19/thousands-protest-against-the-guthi-bill-in-kathmandu
6. Ibid
7. Ojha, Anup “Police use force against those protesting Guthi Bill”. The Kathmandu Post, 10 June 2019: https://kathmandupost.com/valley/2019/06/10/ police-use-force-against-those-protesting-guthi-bill
8. “Furore over PSC decision”. The Himalayan Times, 2 June 2019: https://thehimalayantimes.com/nepal/furore-over-psc-decision/
9. “Nine persons, including NEFIN president, injured in baton charge”. Nepal Monitor, 17 August 2019: https://nepalmonitor.org/reports/view/25329
10. Constitution of Available at: http://constitutionnet.org/sites/default/ files/nepal_constitution_-_official_translaiton_eng_mljpa.pdf
11. See The Indigenous World 2019
12. “Illegal and Inhumane act in the name of Road Expansion”. Lawyers Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), 5 February 2017: http://www.lahurnip.org/news-details/62.html
13. Gurung, D Tsering ”Nepali park officials tortured a man to death. Then, the government and the World Wide Fund for Nature rewarded them”. The Kathmandu Post, 3 March 2019: http://kathmandupost.ekantipur.com.np/ news/2019-03-03/nepals-park-officials-who-beat-and-tortured-a-man-were- rewarded-by-the-government-and-the-world-wide-fund-for-nature.html
14. Baker, M Katie & Warren, Tom, “WWF Funds Guards Who Have Tortured And Killed People”. BuzzFeed News, 4 March 2019: https://www.buzzfeednews.com/ article/tomwarren/wwf-world-wide-fund-nature-parks-torture-death
15. Cit (13)
16. For more information on the Accountability Counsel, see :https://www.org/
17. For more information on Lawyers Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), see: https://www.lahurnip.org/
18. “NPC approves concept paper of 15th plan”. My República, 29 April 2019: https://myrepublica.nagariknetwork.com/news/npc-approves-concept-paper- of-15th-plan/ See detailed plans in Khas Nepali language at https://www.npc.np/images/category/15th_Plan_Approach_Paper2.pdf
19. “Press Statement Route”. Lawyers Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), 5 July 2019: https://www.lahurnip.org/press- release-and-statement/68.html
20. “Providing ID cards, living space, Rautee did not leave the traveling life”. Ghorkhapatra Online, 27 January 2020: https://gorkhapatraonline.com/ society/2020-01-27-7727
21. “Climate Change Policy 2019 Towards Climate Resilient Economic Prosperit”. Spotlight Nepal, 29 September 2019: https://www.spotlightnepal. com/2019/09/29/climate-change-policy-2019-towards-climate-resilient- economic-prosperity/
22. The Yogyakarta Principles are 29 principles adopted by an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006, and the Yogyakarta Principles Plus comprise 38 principles plus and additional 9 Principles in These 38 Principles are on the application of human rights law in relation to sexual orientation and gender identity. See the Principles at https://yogyakartaprinciples.org/wp-content/uploads/2017/11/ A5_yogyakartaWEB-2.pdf 

Tags: Land rights, Women, Climate, Human rights, Conservation